clr/1983/1983_2_261.pdf

(2)—Carrying scaffold underelectrically chargedoverheadcable—Instructionsby foreman to employees to carry it horizontally toavoid contact withcables— Whether they amount to "practicable precautions" in the sense of the said regulation 109

(2)—And whether there isfailure to comply with such regulation if the foreman after giving his instructions does not remain there to supervise their carrying out, While some employees of the appellants were pushing, in the grounds of the State Fair in Nicosia (Makedonitissa), a metal scaffold on wheels along a path from one pavilion, which was at that time under construction, to another pavilion, such scaffold came into contact with overhead electrically charged cables with the result that there occurred an electrical discharge which caused the death of one of the employees and seriously injured two other 261 General Constructions v. Social Insurance Officer

(1983)employees. As a result the appellants were prosecuted and convicted of the offence of failing to take all practicable precautions to prevent personsemployed bythem from coming into contact with electrically charged overhead cables, contrary to regulation 109

(2)* of the Buildings and Works of Engineering 5 Construction (Safety, Health and Welfare) Regulations 1973, which were made under section 66

(1)of the Factories Law, Cap. 134. According to the version of the appellants at the trial,a foreman of the appellants, who wasat the time incharge of the em- 10 ployees concerned, instructed one of such employees, Antonakis Perentis, to move the scaffold by carrying it sideways and horizontally, and not by pushing it and wheelingit along the path, and for thispurpose there wereassigned to this task, in addition to the said Perentis, another five employees of the appellants; 15 also, Perentis was told by the foreman that he could secure, if necessary, the assistance of six or eight more employees, who were working at the time at the site in question, by requesting this from the chief foreman of the appellants. In convicting the appellants the trial Court took the view that 20 the fact that a foreman in theemployment of the appellants had given instructions as regards the mode inwhich the scaffold was to be moved safely from the one pavilion to the other did not amount to due compliance with the requirements of the aforequoted regulation 109

(2), because in the opinion of the trial 25 Judge the words in such regulation "all practicable precautions shall be taken to prevent such danger either by the provision of adequate and suitable placed barriers or otherwise" envisaged more than precautions byway of express instructions and required the taking of practical measures. 30 Upon appeal against conviction: Held,that the wording of regulation 109

(2)is not such as to exclude on all occasions proper instructions from being "practicable precautions" in thesenseof such regulation; and that, therefore, the conviction of the appellants was based on an 35 erroneous interpretation andapplication bythetrial Court,tothe facts of the present case, of the said regulation 109

(2); acRegulation 109

(2)is quoted at p. 264 post. 262 2 C.L.R. General Constructions v. Social Insurance Officer cordingly the appeal must be allowed and the conviction set aside. 5 Held, further, that because theforeman did not remain there to supervise the carrying out of his instructions, it cannot be said that it has been established, with thecertainty required in order to convict, that, in the circumstances of this particular case, theappellants failed to take "all practicable precautions", in a manner amounting to a breach of regulation 109

(2). Appeal allowed. 10 Cases referred to: Perentisv.General Constructions Co. Ltd.(198!) I C.L.R. I at pp. 15, 16, 17. ι Appeals. Appeal. against conviction by General Constructions Ltd15 whowere convicted onthe23rd December, 1975at theDistrict Court of Nicosia (Criminal Case No. 8309/75)onone count of the offence offailing totakeallpracticable precautionsto prevent persons employed by it from coming into contact with electrical­ ly charged overhead cables, contrary to regulation 109

(2)ofthe 20 Buildings and Works of Engineering Construction (Safety, Health and Welfare) Regulations, 1973, and appeal by the Attorney-General of the Republic against theinadequacy of the sentence of £40.- fine imposed by HjiConstantinou, S.D.J. 25 30 T. Papadopoullos with P. loannides, for the appellants in Criminal Appeal 3682 and for the respondents in Criminal Appeal

1. A. Frangos, Senior Counsel of the Republic with G. Constantinou {Miss), Counsel of the Republic, for the respondents inCriminal Appeal 3682 andtheappellant in Criminal Appeal
2. Cur. adv. vult. 35 TRIANTAFYLLIDES P. read the followingjudgment of the Court. The appellant company challenges, bymeans of Criminal Appeal No. 3682, itsconviction, by theDistrict Court of Nicosia, of the offence of failing to take all practicable precautions to prevent 263 Triantafyllides P. General Constructions v. Social Insurance Officer

(1983)persons employed by it from comingintocontactwith electrically charged overhead cables, contrary to regulation 109

(2)of the Buildings and Works of Engineering Construction (Safety, Health and Welfare) Regulations 1973, which were made under section 66

(1)of the Factories Law, Cap. 134. 5 The appellant Attorney-General of the Republichas appealed, by means of Criminal Appeal No.3683, against the sentenceof a fine of C£40 which was imposed on the appellants and contends that such sentence is inadequate. These two appeals were heard together in view of their interrelated nature. 10 The appellants were prosecuted because while some employees of theirs were pushing, in thegrounds of the State FairinNicosia (Makedonitissa), a metal scaffold on wheels along a path from one pavilion, which was at that time under construction, to 15 another pavilion, such scaffold came into contact with overhead electrically charged cables with the result that there occurred an electrical discharge which caused the death of one of theemplo­ yees, Andreas HjiStefani, and seriously injured two other em­ ployees. 20 The aforesaid regulation 109

(2)reads as follows: "

(2)Els περίπτωσιν καθ' ην ήλεκτρικώς πεφορτισμένον έναέριον καλώδιον ή συσκευή δυνατόν να άποτελέση αίτίαν κινδύνου δι' απασχολούμενα πρόσωπα κατά τήν διάρκειαυ οΙωνΒήποτε εργασιώνείς τάςοποίας εφαρμόζονται olπαρόντες 25 Κανονισμοί, εΐτε ένεκεν της λειτουργίας ανυψωτικής συσκευής ή άλλως πως, δέον όπως λαμβάνωυται όλαι αί δύναται προφυλάξεις διά παρεμπόδισιν του τοιούτου κινδύνου εΐτ ε 6ιά της παροχής επαρκών και καταλλήλωςτοποθετημένος περιφράξεων είτε άλλως πως". 30 ("

(2)Where any electrically charged overhead cable or apparatus is liable to be a source of danger to persons employed during the course of any works to which these Regulations apply, whether from the operation of a lifting appliance or otherwise, all practicable precautions shall be 35 taken to prevent such danger either by the provision of adequate and suitably placed barriers or otherwise.")· 264 2 C.L.R. General Constructions v. Social Insurance Officer Triantafyllides P. In convicting the appellants the trial Court took theview that the fact that a foreman in the employment of the appellants had given instructions as regards the mode in which the scaffold was to be moved safely from the one pavilion to the other did not 5 amount to due compliance with the requirements of the aforequoted regulation 109

(2), because in the opinion of the trial judge the words in such regulation "all practicable precautions shall be taken to prevent such"danger either by the provision of adequate and suitable placed barriers or otherwise" envisaged 10 more than precautions by way of express instructions and required the taking of practical measures. According to theversion oftheappellantsat thetriala foreman of the appellants, whowasat the time incharge of the employees concerned, instructed oneof such employees,Antonakis Perentis, 15 to move the scaffold by carrying it sideways and horizontally. and not bypushing it and wheeling it alongthepath, and for this purpose there were assigned to this task, in addition to the said Perentis, another five employees of the appellants; also, Perentis was told by the foreman that he could secure, if necessary, 20 the assistance of six or eight more employees, who were working at the time at the site in question, by requesting this from the chief foreman of the appellants. We are of the opinion that the wording of regulation 109

(2)is not such as to exclude on all occasions proper instructions 25 from being "practicable precautions" in the sense of such regulation; and that this viewiscorrect can bederived also, from the following passage of thejudgment of one of us -A. Loizou J. - in Perentis v.GeneralConstructionsCo.Ltd.,

(1981)1C.L.R. 1 (at pp. 15, 16 and 17): 30 35 40 . "The trial Court concluded that therespondent Company by effecting the preparatory work for the removal of the scaffold horizontally, by the giving of express and clear instructionsto thiseffect to a competent, trustworthy and sensible employee and by the assignment of the right number of persons for the due execution of these instructions, took all possible measures for avoiding any danger from live overhead lines and therefore there was no breach of the aforesaid regulation. Under the aforesaid regulation what is demanded of an employer is to take all practical precautions to prevent 265 TriantafjHides P. General Constructions v. Social Insurance Officer

(1983)persons employed from coming into contact with electrically charged overhead cables and this is clearly what the respondents did. In our case the duty imposed by the aforesaid regulation and in particular sub-paragraph 2 thereof is to take all 5 practicable precautions to prevent such danger. 'Practicable' has been defined as meaning that it isfeasible, that it can be done; and mthe case of Lee v. NurseryFurnishingsLtd. [1945] I All E.R. 387,Lord Goddard referred to the Oxford dictionary astothemeaningof theword'practicable' 10 as being'capable of being carried out inaction' or 'feasible', and Hallett, J. said in Schwaib v. Pass (//.) & Son Ltd. [1946J 175 L.T.345: 'Clearly, the fact that the use of the appliances would slow up production does not render their use impracti- 15 cable; and I have no right to substitute for the word 'impracticable' expressions such as 'difficult', 'not too easy' or 'inconvenient' or any other word'. Regulation 109 by its very wording leaves room for the measures to be taken by the employer to be other than the 20 provision of adequate and suitable placed barriers and such measures were in the circumstances adequately taken as found by the trial Court and we see no reason to interfere with its conclusion that there has been no breach of the aforesaid regulation." In the Perentis case, supra, an Appeal Bench of this Court composed of A. Loizou, Demetriades and Savvides JJ. - upheld a judgment of the District Court of Nicosia dismissing a claim of the said Antonakis Perentis, against the appellants in the present proceedings, for damages suffered due, inter alia, to a 30 breach of the aforesaid regulation 109

(2), which had allegedly occurred in the course of exactly the same events which gave riseto the prosecution of theappellants inthecasenowbefore us. We have, therefore, reached the conclusion that the conviction of the appellants was based on an erroneous interpretation and 35 application by the trial Court, to the facts of the presentcase,of the said regulation 109

(2). 266 25 2 C.L.R. GeneralConstructions v.SocialInsuranceOfficer TriantafyHides P. It iscorrect that the trial Court went on tosay in itsjudgment that even if the express instructions given to the foreman, as aforesaid, could amount to "practicable precautions" in the sense of regulator 109

(2), in his view "all" practicable precau5 tions were not in fact taken, as required by such regulation, because it was not sufficient to give instructions only to Perentis, who was one of the employees involved in moving the scaffold and, also,becausethe foreman did not remain there to supervise the carrying out of his instructions. 10 Wedo not agree with the aboveviewof thetrialCourtbecause we are of the opinion that once the foreman had given to Perentis, who was the most senior of the employees concerned, express and clear instructions as to how to move the scaffold safely and had, also, indicated that more assistance could be 15 secured by requesting it from the chief foreman, it cannot be said that it has been established, with the certainty required in order to convict, that, in the circumstances of this particular case, the appellants failed to take "all practicable precautions", in a manner amounting to a breach of regulation 109

(2); and 20 the above view of ours finds support in the already quoted passage from the judgment of the Perentis case, supra. Wedo not lose sight of the fact that the said Perentiscase is a proceeding separate and distinct from the present criminal appeals which are now being determined by us, but wefind that 25 the approach adopted by another Appeal Bench of this Court to practically the same legal issue and facts with which we have to deal in the present instance affords us considerable and valuable guidance; and if in the cognate civil proceedings in the Perentis case both a Full District Court in Nicosia, as the trial 30 Court, and an Appeal Bench of this Court have not found a breach of regulation 109

(2)bythe appellants, a fortiori we would not bejustified infinding that sucha breach hasbeen established, in the present criminal proceedings, beyond reasonable doubt. For the foregoing reasons we have decided to set aside the 35 conviction of the appellants and, therefore, we need not deal with the appeal of the Attorney-General of the Republic concerning the adequacy of the sentence imposed on the appellants as a result of a conviction which we have just set aside. 40 Appeal against conviction allowed. Conviction set aside. 267